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The America's Cup Trust

How to permanently fix the America’s Cup
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I am writing this a few days before Christmas in the awful Plague Year of 2020 and am marveling at the great Double Alignment. Can it be mere coincidence that the two largest planets in our solar system came into their closest conjunction since 1623 in the very same week that our two greatest sailing events, the Vendée Globe and the America’s Cup, likewise aligned, with the Vendée fleet streaming south of New Zealand just as the first races of the AC36 cycle were run in Auckland harbor?

Slaughter the goats! Cast their entrails! Great things are happening!

One nice and potentially great thing I noticed watching coverage of the AC’s so-called Christmas Cup was that the New York Yacht Club seemed quite competitive. Perhaps by now (fingers crossed) they have risen to challenge Team New Zealand in the Cup final this month. This would be most auspicious, of course, as it was the New York YC that started this whole mess we call the America’s Cup in the first place.

It is common for aficionados to urge that America’s Cup racing “must return to its roots,” by which they normally mean racing in generally similar, fairly slow monohulls like 12-Metres or IACC boats. But let’s be honest. The true roots of Cup racing involve a bunch of really rich guys with big egos sailing around in super-expensive, often weird machines while madly arguing with each other.

This has made for some fine spectacle—on the racecourse, in the press and occasionally in courtrooms. However, it also makes the event inherently unstable. Professional sailors have long bemoaned this, hoping instead to regularize things, so that Cup cycles can occur as predictably as planetary gyrations. One can argue about whether this is actually desirable, but if it is, there is, I submit, one way to solve the problem.

The Cup’s fatal flaw is found—where else?—in the Deed of Gift. This establishes a trust wherein the Defender of the Cup serves as trustee and largely controls competition. You don’t really have to go to law school to see the contradiction here. You can simply look up “trustee” in the dictionary: a person who holds and manages property in trust for the benefit of others. The notion of a trust wherein the trustee (the Defender) regularly competes with the trust’s putative beneficiaries (the challengers and racing sailors generally) for the corpus of the trust (the Cup) is, on its face, a legal absurdity. I am amazed the several judges who have heard America’s Cup litigation over the years have never remarked on this.

Little wonder then that much of the history of the Cup has consisted of defenders fixing the rules so as to favor themselves. The first and arguably worst offender was the New York Yacht Club itself. Its “longest winning streak in sports” certainly was not the product of 132 years of faultless sportsmanship. It would be very appropriate then, were the NYYC to win again, if it applied to the New York courts to have the Deed of Gift amended. Instead of defending the Cup, for example, the club might ask to be appointed as a permanent, truly impartial trustee, forever barred from competing, but charged with organizing and conducting future racing so as to adhere to the deed’s original principles.

A new regime like this could easily address the many problems that have long plagued Cup racing, holding events on a regular schedule with much more certainty as to the types of vessels to be raced, while also preserving those same things that make the Cup unique and prestigious. Of course, the NYYC itself need not win the Cup for this to happen. Any winning club, or perhaps merely a collection of interested clubs, might petition to reform the deed and have a permanent trustee appointed. That said, I believe the NYYC, in the end, is the most appropriate body to fill that role, given the Cup’s origins and history.

Could this ever really happen? Could the really rich guys with big egos who like to sail around in super-expensive boats and argue with each other ever agree to participate in such a rationally organized event? Or is this just a rhetorical question? Time will tell. 

February/March 2021

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